*1 ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATEOF al., Defendants-Appellants. MELVIN ENOCH et (6th Division) First District No. 1 — 86—0741 Opinion filed September 1989. *3 P.J.,
EGAN,
concurring.
specially
Defender,
(Thomas J. Brosnan
Stone,
Chicago
of
N.
Public
Randolph
Defenders,
counsel),
appellants.
for
Edwards,
Assistant Public
Alison
(Inge Fryklund, Kenneth
Partee,
Chicago
Attorney, of
State’s
Cecil A.
counsel),
for
Shlifka,
Attorneys,
Assistant State’s
McCurry,
T.
Mark
People.
of the court:
QUINLAN
opinion
delivered
JUSTICE
charged Enoch were
Robert, Melvin and Jimmie
Defendants
on December
of Sandra
kidnapping
aggravated
*4
following
counts
convicted
both
were
1979. The defendants
of Cook
in the circuit court
Maloney
Thomas
Judge
trial before
the convictions
affirmed
This court
held in 1980.
County,
or
1203,
(unpublished
Ill.
Enoch
(1982), 104
Court
Illinois Supreme
and the
23)),
Rule
Court
Supreme
der under
denied leave to
the defendants
appeal. Subsequently,
petitioned
United States District Court for the Northern District of Illinois for a
corpus.
habeas
writ of
That
granted
defendants’
and ul
petition
defendants. United States ex rel.
ordered a new trial for the
timately
Enoch v. Lane
(N.D.
1984),
The United States District Court ruled that the trial court in the
original trial had committed reversible error when it refused to allow
witness,
Griffin,
Patricia
for the
testify
defense. The trial court
had refused to allow Griffin to testify as a
sanction since
discovery
Griffin was not added to the defense witness
until
list
after the State
case,
had rested its
though
even
Griffin lived next
door
the defend-
ants at the time of
alleged rape,
and defendants’ mother had been
aware
time,
of Griffin’s potential
testimony for some
but
had
simply
never informed defendants’ attorney about that
testimony. The dis-
trict court held that the trial court’s sanction amounted to reversible
error because
defense,
Griffin’s
testimony
crucial to the
and the
State had
failed
show
to it
prejudice
as a result of the late dis-
(Enoch,
closure.
581 F.
423.) The
Supp.
district court’s order was af-
firmed by the Seventh Circuit Court of Appeals. United States ex rel.
Enoch v.
Hartigan
(7th
1985),
Cir.
Subsequently, were retried in a jury again trial before Judge Maloney trial, 1986. At this Robert and Melvin Enoch were again found guilty aggravated kidnapping, Jimmie Enoch was found guilty of rape. The trial judge then sentenced Robert and Jimmie Enoch to 25 years’ imprisonment, and Melvin Enoch to 12 years’ imprisonment. Defendants now their appeal con- victions to this court. 1We note that since the reversing Seventh Circuit’s remanding decision this
case,
Supreme
held,
the United States
County
Court has
also
a Cook
circuit court
case,
ipso
that it is not
preclude
reversible error for a trial court to
the testi
facto
mony
proposed
of a
discovery
failing
witness as a
sanction for
to disclose
(Taylor
400,
witness before trial.
798,
v. Illinois
484 U.S.
98 L. Ed. 2d
There,
646.)
108 S. Ct.
acknowledged
the Court
the accused has a fundamental
right
present
defense,
witnesses in his
right
held
is not unfettered.
400,
(Taylor,
798,
484 U.S.
98 L.
Taylor
Ed. 2d
108 S. Ct.
court held that
the trial
properly
testimony
court there
excluded the
of a defense witness who was
not added to
case,
the defense witness list until the State
though
had rested its
even
defense counsel had been aware
(Taylor,
of the witness for some time.
484 U.S.
98 L. Ed. 2d
108 S. Ct.
“[r]egardless
The Court stated that
of whether
***
prejudice
prosecution
case,
to the
plain
could have been avoided in this
it is
category
the case fits into the
of willful misconduct
in which the severest sanction
testimony]
appropriate.” Taylor,
of the witness’
[exclusion
The retrial of defendants in this case took in 1986. place January statement, In defense counsel’s he told the that he would opening jury victim, Davis, prove that Sandra was a and that she prostitute was on the working night when she was Defense allegedly raped. counsel also said he would show that Davis was beaten her pimp morning on the for not having December she money supposed night was to have earned the He further before. told that Davis had her jury story being raped fabricated in order to about statements, she had explain why Following opening been beaten. tes- was heard in the timony case. Davis, victim,
Sandra testified that she years was old 1979 and on the evening December of December she took the CTA to her cousin’s house to p.m. play around cards. Davis said she at her stayed cousin’s house until 4 a.m. and then took approximately station, the CTA home. On her home from the CTA around 5 way a.m., past Davis walked 2031 South Clark street Chicago, build- to her ing adjacent apartment building at 2030 South Clark.2 When Clark, Robert, she passed 2031 South she noticed also known as and Melvin Enoch. She said she knew and Melvin but “Sunny,” Sunny was not friends with them. if
Davis said that as she walked asked her she had by, Sunny any no, and when she he her if she cigarettes, thought said asked she was hang her, too around him. then showed good grabbed with Sunny gun, her a and told her that he and Melvin were her. going and Melvin her into an elevator and took her Sunny pushed up testified, their 14th At apartment point, floor. Davis in- and so her in the face. Once began yelling crying, Sunny slapped the Enochs’ told not to make noise apartment, Sunny side Davis mother in the then hit Davis asleep apartment. Sunny because his gun. in the head with his taken into a bedroom which told the that she was back
Davis Enoch, and Sun- Doug Davis testified that Melvin contained two beds. brother, took to the other Sunny in one of the beds. Davis ny’s He clothes, clothing. and her as well as some his bed removed then intercourse her and her onto the bed and had slapped pushed time, taking in the doorway with her. At this same Davis saw Melvin pictures. Chicago, buildings according numbering system for 2We note that to the adjacent adjacent buildings. to the We will refer and 2031 South Clark should not be however, parties referred to the
buildings this is how the as 2030 and because and, also, numbering buildings critical to this buildings of the is not in the record appeal. her, said, having had finished intercourse Sunny After tried her clothes back put came into the room. When Davis Melvin and choked and told her he on, slapped, pushed Melvin while stood in Sunny Melvin then had intercourse with her devil. doorway taking pictures. Enoch, brother, room Jimmie another
Melvin then left legs. in with Jimmie then also wiped came a towel and between Davis’ Next, back into the had intercourse with Davis. came room Sunny told Davis that he not finished. had intercourse with Davis Sunny time he her that belonged Sunny told she now to them. second if said she told what had anyone happened, Davis around and slapped sister, and her her, every- kill her mother would show he would *6 taken. he and Melvin had pictures that body the Enochs’ apartment said she was allowed to leave Davis 7:25 went into home, around a.m. When she arrived she her bedroom telling her that without mother what had Davis happened. testified noon, she got around and her mother her up wrong. asked what was did not mother reply again wrong. Davis and her asked her what was then her that raped Davis told mother Melvin and Jimmie Sunny, had Thereafter, her. Davis’ mother immediately police. called of- police ficers came to the and took apartment Mercy Hospital. Davis to cross-examination, said, 1980,
On Davis admitted that she had that the Enochs her at 2:30 a.m. Defense counsel also approached asked Davis if she previously had testified that she saw defendants’ mother and sister in the Enoch re- asleep apartment, which Davis plied “no.” Davis admitted that she had testified she previously that from camera, saw a flash but said that she her after had collected she that thoughts, remembered there was no flash. Davis conceded mother had her what that her was wrong asked at 7:30 a.m. on De- 6, 1979, and admitted that she did not tell cember her mother about redirect, at time. Davis that explained that On she said noth- rape to her a.m. because she ing rape mother at 7:30 about was afraid of Sunny’s threats. Davis, mother,
Alma that Davis Sandra’s then testified when 1979, at came home 7:30 a.m. she up- on December was crying set and her face was swollen and When scratched. Mrs. asked Davis wrong, her was Davis did not what and went room. reply into her noon, said, out, Around Mrs. Davis Davis came back so Davis Mrs. asked her Mrs. why upset crying. she was still Davis insisted that tell Davis her Davis then told her mother that wrong. what was her, Melvin Sunny, point and Jimmie Enoch had at which Mrs. raped Davis called the police.
Dr. specialist Patterson testified for the State that he was a in ob- De- Mercy stetrics and and was at gynecology practicing Hospital Hospital, cember 1979. at Patterson had examined 60 to Mercy While and, no- victims on December he examined Davis. He He right ticed that the side of her face was scratched and swollen. of fluid un- vagina, upon also noticed in her which examination pool freely swimming,” der a showed “numerous microscope multi-sperm that indicating eight intercourse within the last hours. Patterson said throughout examination, Davis was Patterson upset crying. said that he remembered three this case: Davis said things about men, she had been assaulted three Davis had severely been face, beaten around her and that Davis said her attackers had taken cross-examination, ad- pictures during the sexual attack. On Patterson fact, if, mitted that he had been did know assaulted men or raped. three if she had been actually only witness that defendants in their presented captain Patricia that she floor of the 14th Griffin. Griffin testified in the She building floor located at 2031 South Clark. testified Enochs next her in and that her had lived door to bedroom shared a wall of the Enoch Griffin said boys. bedroom her on December she for work at 6:30 a.m. and left got up 7:15 a.m. the time apartment around Griffin testified work, for she noise from the ready she was never heard getting apartment. Enoch
Griffin also testified that she had known Davis since Davis leaving building go Griffin then said that as she young. work on Davis with man Griffin not know. December saw did As The man was the front of Davis’ Griffin ran grabbing blouse. *7 “bitch, fuck- bus, my catch her heard someone where mother say, she As the rested. Following testimony, Griffin’s ing money at[?]” noted, their convictions appeal found and now guilty defendants were this court. and sentences to a judge displayed that the trial argue appeal
Defendants first on Griffin, acted as witness, improperly their and hostile attitude toward The them of a fair trial. her, depriving in thus prosecutor questioning the trial to occurred when exchange defendants objected by first boys she the Enoch shared how knew Griffin about judge questioned al- with bedroom. Defendants the abutted the wall her bedroom which revealed exchange the trial comments lege judge’s Griffin, a in her tes- also disbelief hostility toward impatience timony. acting impa- trial was not judge
The State contends
543 Griffin, he questioned merely trying tience or when but was hostility to the State claims that the trial clarify testimony. Additionally, her laying to assist the defense in the foundation judge attempting for Griffin’s testimony. defendants, however, trial judge completely
The maintain that the judicial prosecutor abandoned his role and acted as when improperly he questioned Griffin the man she saw testifying about of grabbing questions Davis’ blouse. Among complained “Now, captain, were the following: you building defendants are [the] *** aren’t Did do about this when saw the you? you anything you man allegedly holding you ever [who blouse]—had *** seen it, the man before? You do anything you kept didn’t about right?” of running, questioning by Defendants claim that this line trial eyes discredited judge testimony Griffin’s Con- jury. sequently, they right defendants assert that were of their to deprived a fair trial are entitled to a new trial. State, hand, on the other questioning denies that this was im- that, too,
proper and contends here merely trial at- judge tempting clarify Griffin’s The State testimony. submits trial judge’s here questioning deprive did not defendants of a fair trial because the trial record failed to show or partiality bias part of the trial judge. Accordingly, says that the trial court acted within properly judicial its function when it questioned Griffin.
It is within
trial
court’s discretion to question witnesses
in an attempt
matters,
to elicit the truth or
clarify
so long
obscure
as the court remains fair and
impartial
its
v.
questioning. (People
Gross
166
(1988),
1043, 1050;
Ill.
3d
519
App.
People
419,
v.
425,
White
Ill.
(1973),
App.
660,
3d
306 N.E.2d
A
666.)
trial
has not
court
as a
if
improperly
prosecutor
questions
acted
his
were
only
clarify
(Gross,
asked
evidence.
Ill.
3d at
App.
422,
A
519 N.E.2d at
trial
given
also
wide discretion in
trial,
conducting
court cannot make
or
comments
insinua
tions indicating its
on the
opinion
credibility of a witness or the argu
ment of counsel.
v.
(1987),
1010,
Cobbins
3d
1028,
However,
516 N.E.2d
in order to constitute reversible
error, the trial court’s remarks must have been a
factor
material
the defendant’s conviction or must
have
appear
prejudiced
Cobbins,
defendant.
Ill. App.
3d at
180 People N.E.2d Ill (1953), v. Marino 414 Ill. N.E.2d 534; v. People Pressley (1987), App. 921; 513 N.E.2d 3d People (1966), v. Martin Ill. App. 2d We find, however, that distinguishable those cases cited are by defendants from present case. We do not judge believe that the trial here as sumed the role of prosecutor, a and a the record supports review of the State’s contention that the trial judge’s questions were directed only toward clarifying testimony. explained Griffin’s The trial court its actions at defendants’ motion for a new trial. The court said that and, therefore, Griffin it spoke very rapidly and tended ramble periodically tell her to wait a minute so the necessary jury could Further, here, understand her. the extent that occurred error we it to harmless guilt find be error since defendants’ estab lished a and there that beyond reasonable doubt is no evidence an er ror verdict; the basis for jury’s formed the error is consequently, harmless. Johnson 310. next claim trial
Defendants that court committed reversible error them to a fair right during and denied their trial defense coun- counsel, closing argument, sel’s closing argument. Defense told the that the and bruises which Dr. Patterson jury semen testified the proposition about that she were “also consistent [Davis] somebody as a That sex with else working prostitute. [was] [had] up by that And that she was beaten night. Maybe people. several told the defense counsel and pimp.” interrupted jury The court then victim, Davis, a prostitute. that could not infer that they court, at directly contra- point, contend that the trial this Defendants courts, said that the trial which had dicted the Federal holding prostitute. did, fact, to infer Davis was right have a er- compounded trial addition, judge that the the defendants claim evidence, judge said specifically, ror when when he misstated the say unknown man heard the only that Griffin had testified that she “bitch.” evidence no there was State, hand, on the other asserts and, prostitute, that Davis was
at support this trial to the inference not infer could the jury ruled that the trial accordingly, judge properly judge did the trial Also, maintains she was. the ruling but found holding, contradict the Federal courts’ certain wit- on retrial because binding the Federal courts was not and, trial at this testify did not at the first trial nesses testified who inference that witnesses, any the other testimony without Moreover, the State notes valid. longer no Davis was a prostitute the Seventh Circuit affirmed the district court’s order for a re- and, retrial, trial Griffin testify testify. to allow Griffin did *9 the State Finally, argues that the trial court did not misstate the evi- confused, concerning testimony, dence Griffin’s as he merely later explained.
In United States ex rel. v. Enoch Lane (N.D. 1984), 581 F. Supp. the district court held that on based the testi proffered Griffin, mony of a jury could have inferred that Davis prosti was a trial, tute. In defendants’ however, first defendants had six presented witnesses, including Teresa who Mosley, testified that she and “ ” (Lane, ‘use to have sex with for mens money.’ [sic] [sic] said, F. Supp. 426.) at The district court “Griffin’s testimony would have buttressed petitioners’ contention that Davis prostitute by was a providing evidence corroborating Teresa Mosley’s testimony,” though even “Griffin would not have testified as to directly *** activities, Davis’ her testimony would have lent support (Lane, Mosley’s Likewise, testimony.” 581 F. at Supp. the Sev enth Circuit noted that Griffin’s “was testimony highly significant when light considered in of the other evidence in the case.” United States ex rel. Enoch v. Hartigan (7th 1985), 161, 163. Cir. 768 F.2d
Although statements and arguments upon facts in based evi dence or reasonable inferences therefrom are within the of a scope Terry proper closing argument 99 Ill. 2d 750), N.E.2d no we find error in the trial ruling court’s the could not infer that Davis was jury prostitute based on Griffin’s noted, alone. As the testimony the merely district court held proffered Griffin’s in testimony prior the trial would have been suffi cient an of support inference prostitution conjunction with the testimony Here, of Teresa Mosley. only arguably the evidence relevant to the allegation prostitution Griffin’s testimony that she heard “bitch, someone say, my fucking where mother This money at[?]” statement, own, believe, on its we insufficient to support defend ants’ claim that prostitute. Furthermore, Davis was a we note that the defense did tell the actually jury during closing argument, his be him, fore trial judge stopped the that Davis was a prostitute and had her on pimp alleged Hence, been beaten of the night rape. alleged error the trial court’s ruling harmless under the cir cumstances.
We also find that the trial did not judge prejudice defend ants when he misstated Griffin’s testimony. The judge trial promptly after a juror corrected himself confirmed that Griffin had said she “bitch, heard man mother say, fucking the unknown where my money heard and remembered clearly jury which indicates at[?]” We further do find that the trial testimony. judge improp Griffin’s credibility commented of a witness or erly argument Cobbins, testimony. counsel he misstated (See when Griffin’s at at again explained at new hearing defendants’ on their for a trial Griffin would motion Be begin testimony loudly immediately drop and then her voice. Griffin facing and was away judge cause was turned from occurred because he did jury, problem simply court said that hear after what Griffin said “bitch.” Next, the trial comments judge’s defendants assert of the that the sentencing hearing their revealed his resentment fact retrial, claim Federal courts had ordered which defendants a fair It is position somehow them of trial. the defendants’ deprived that the trial his comments revealed his desire achieve judge by same retrial had reached defendants’ upon verdict trial, result in some un- first and that he therefore had achieved this *10 Defendants, ask this court consequently, described manner. prejudicial a to retrial before a different grant judge. at post-trial
The that the trial remarks the responds judge’s State of a fair trial since hearing deprived could not have the defendants addition, In the by alleges were convicted a State jury. the defendants disagreed he the only comments revealed that judge’s that matter, the re- resolution of the not that he resented Federal courts’ in the that the same result would be achieved trial order or intended second trial. make claim of at the earliest prejudice
A defendant must a Taylor (1984), discovered. any prejudice moment after However, a 705, 710.) because merely 101 Ill. 2d a in a case is not in itself prior trial has ruled defendant judge against 2d at (Taylor, to that Ill. disqualify judge. sufficient reason addition, a trial is- sentencing phase of 463 N.E.2d at reviewing the trial discretion of a judge, committed to sound court, for of the trial ab its that judgment court will not substitute v. Alexander an of discretion. sent abuse 1007, 1018, 1080. trial not prejudiced that defendants were conclude We raise First, defendants did even sentencing. at court’s remarks motion, post-trial -despite their they until filed prejudice the issue of throughout prejudice apparent claim that the court’s their to sentencing here Second, go would any possible prejudice trial. itself, not com- trial, do to the trial defendants of the phase Therefore, to their we find these al- plain this court about sentences. legations of to be without merit. prejudice a they deprived
Defendants’ next issue on is that were of appeal fair trial to of in the prosecutorial due numerous instances misconduct First, to closing object State’s and rebuttal defendants arguments. which, closing comments made the State’s rebuttal during argument argue, defendants were made to arouse for the victim solely sympathy and to defense These comments prejudice jurors against counsel. were: rape report they that victims hesitate to their crime because court, are not only humiliated and degraded, they go when they are claim as prostitutes; called defendants will consent a de- if fense and fall a injuries victim has no back prostitution defense if there are injuries; gave counsel here never Davis a to say response chance to his claim anything prostitute because he never asked her cross-examination whether prostitute; she was fact a Davis came to to tell 14 strangers about the most degrading experience humiliating her life and defense “dirty victim”; counsel then tried to up if two mistakes in Davis’ recollection of her 21/2-hour ordeal con- doubt, stituted reasonable then we should that no one else is pray raped you “because are not only going to have the rape, survive but you are also to have to going every single remember of the [detail rape].”
The State responds objections defendants’ to some of these comments Further, were waived. prosecu- contends that the tor’s comments were or proper were invited defense counsel. For example, the State asserts that its comment concerning hesitation rape victims to was in report response crime to defense coun- sel’s claim that Davis hesitated so that she could make The up story. comment that are prostitutes response victims called was in defense counsel’s as a attempts prostitute. characterize Davis comment concerning prostitution the defenses of consent and was in *11 response raised to defenses at trial and did not that defense imply Also, counsel its fabricating was defense. the State that its maintains comment concerning defense counsel’s failure to ask Davis whether she was a a was on failure to prostitute comment defense counsel’s statement, i.e., prove what he said he in his that prove opening would Davis was a and had about prostitute being raped. Responding lied that up” the comment was trying defense counsel vic- “dirty tim, says that this response was defense counsel’s claim that Davis had her story. Finally, fabricated the State contends the comment no else is “pray raped” proper one a comment merely on the evils of crime.
A
prosecutor
given great
latitude in
his
making
closing
statement and the trial
ruling
court’s
on the
of that
propriety
argu
ment will not be reversed unless that court
its
has abused
discretion.
(People
163, 175,
v. Cisewski
(1987),
In order to
error,
constitute
improper
reversible
remarks
allegedly
must have substantially prejudiced
(Cisewski,
the accused.
118 Ill. 2d
at
Upon examining closing arguments of the State and both here, defendant agree we of the State’s comments many were invited A defendant. defendant should not allowed to be benefit from his own counsel’s misconduct which invited the State’s response. v. Trass App. 3d 567, 576.) Some of defense counsel’s remarks in closing were *** “just follows: because somebody says something, doesn’t so”; make it “what we have in this case is a young woman who tells an implausible story”; “[concerning the in Davis’ testi discrepancies mony from she has years had six to think this. She about knew 1980] *** that she had told two different stories on this and now she point has to it try explain away”; “she makes up story, [Davis] gets she committed to story”; that there “an enormous rea Doug sonable doubt that Enoch sleep through could this horrendous event, about”; she you has told draw the inference “you [that was a prostitute] from what that man said to Sandra Placing Davis.” then, the objected-to context, comments in their we proper find the State’s comments were within the of a ar proper closing bounds gument.
The next comment also allegedly improper occurred State’s closing argument. allege rebuttal Defendants the State on their failure to when the improperly testify prosecutor commented “So, said, look evidence was there. the victim Certainly, let’s at what heard, testified, you she stand. She testified. And have got cross-examined counsel.” This er- she testified And before. also told prosecutor when the argue, ror defendants compounded, and uncon- case was uncontroverted that the evidence in the nothing heard that she testified tradicted, though Griffin had even alleged rape. time of from the Enoch at the apartment here were not comments prosecutor’s claims that The State
549 to to testify, intended to draw the attention defendants’ failure jury’s but the the evi- strength were comments on circumstantial only against dence defendants. The State also maintains that Davis’ Griffin, testimony fact uncontradicted because defendants’ sole witness, Enoch nothing apartment, testified she heard only not that the never occurred. right
A defendant’s
to remain silent is violated
a prosecu
intended,
to
directly
tor’s remark if
remark
or
fo
indirectly,
cus
Morgan
attention on
silence.
v.
jury’s
defendant’s
111,
1303,
133,
1312;
112 Ill. 2d
v.
(1986),
N.E.2d
Ed
237,
242-43,
1095,
wards
77 Ill. App.
3d
Morgan,
Supreme
the Illinois
Court
it was
objectionable
held that
not
for the prosecutor to
“Don’t
think that
say,
you
somebody has some
explaining to do?” and to note that the defendant in that case “had
his
to
opportunity
confront the
against
bring
witnesses
him and
his
Morgan,
evidence
forward.”
Further, a on prosecutor’s comment the uncontradicted nature of evidence, in his testimony, summary of the not does amount to a comment upon the defendant’s failure to testify. (People Rodri quez (1983), findWe that the prosecutor’s comment that Davis’ was uncontra testimony dicted was a proper comment on the evidence and a comment on Moreover, defendants’ to testify. failure argued, as Grif fin did not contradict raped, Davis’ that she was testimony only said that she did hear apartment. noise from Enoch
Defendants next object prosecutor improperly com mented on their failure to call their Doug mother and their brother testify witnesses. Defendants claim that this comment im because their proper mother were Doug equally accessible State, and the State cannot comment on a call defendant’s failure to witness that accessible it. Defendants also note that equally State can comment on an alibi properly a defendant’s failure to call witness, neither their an alibi Doug but claim that nor mother was witness.. it on commenting
The State denies that was defendants’ failure its call certain witnesses. State claims that comment was based evidence, Enoch was Doug because Davis had testified *13 in the she and told present room where was that defendants raped addition, her that Mrs. home. In that Enoch was State contends to he response closing, its comments were in defense counsel’s where claim that suggested up that Davis made her her story, especially . remained ordeal. Doug asleep throughout her The call a non- State cannot comment on a defendant’s failure to to the witness’ testify implies alibi witness when comment that defendant, to the and when testimony would have been unfavorable Lasley v. that witness accessible to the State. equally is 661, witness, 614, 632, Ill. A (1987), 158 3d 511 N.E.2d App. however, likely against is not available if he is to be equally biased (See to State, for if that witness is related the defendant. example, 1061, 3d N.E.2d People (1988), App. v. Morando 523 300, 1075; 293, Ill. 3d App. v. 149 People Wilson 154, 128, 133; Ill. 484 Taylor (1985), App. Hence, prose N.E.2d we that comment by conclude testify to call to cutor on defendants’ failure their mother brother were was inasmuch as defendants’ mother and brother proper here State, they likely because were biased equally not accessible to contradicted testi may the State and also have the victim’s against mony. trial be that were denied a fair argue they
Defendants also evidence. The prosecutor misstated the medical prosecutor cause corrobo testimony that Dr. Patterson’s argued, closing, had his men. The State by she three raped that testimony rated Davis’ there large pool testified that was a then said that Dr. Patterson in the very he was interested vagina inside that semen Davis’ assert, had never but, Dr. Patterson semen, amount of the defendants ob Finally, the defendants of semen. concerning quantity testified their com jury to the to use to the admonishment ject prosecutor’s to Patterson, examined 60 Dr. who had mon sense to decide whether victims, prostitute. Davis was some thought just 70 issue was waived defendants. by The State first this responds waived, quan- that this comment about If contends not the State it was an error not amount to reversible because of the semen did tity Concerning the admonish- overstatement rather than a misstatement. that this sense, use the State says ment to the their common jury on Patterson’s was a and an inference based Dr. proper appropriate at- counsel’s repeated and also was invited testimony show Davis tempts prostitute.
It overstates evidence is reversible error when a prosecutor (Cob corroborated, actually misstated. partially opposed bins, 391.) Here, 3d at at Dr. Patter swollen, son testified that face that he right side Davis’ of fluid in pool vagina, place noticed a that intercourse had taken hours, within eight upset the last and that emotionally Davis Hence, said had been three men. we believe that raped evidence, the prosecutor here merely overstated over statement did amount to reversible error.
Next, argue the defendants the prosecutor committed reversible error when he misstated Davis’ testimony. comments objected to here closing also occurred the State’s rebuttal ar gument, said, when the told the had prosecutor trial, stand in this that she had
“testified at a took preliminary hearing that witness court, stand. And in another sworn under oath tell the truth. And, Defendants, once again, said those raped three me. they *14 said, Looked them the face and me.” they raped argue although Defendants that Davis was with testi- impeached mony trial, from the the never preliminary hearing and first Davis af- firmatively made the above statement in the This present trial. error was especially prejudicial, according defendants, to because it implied a prior consistent statement with her assertion that the defendants had her. raped
The admits that erroneous, State comment but maintains that error was cured when the trial instructed the jury Further, the disregard comment. the that argues State a con- prior statement, admissible, sistent although is generally not admissible to charge rebut a of fabrication. agree However,
We
that
this remark was erroneous.
we cannot
say
error,
that
the remark rose to the
of
level
the
given
reversible
other
evidence of
proper
guilt.
Cisewski,
defendants’
See
118 Ill. 2d
175,
at
defendants complain appeal also on that the prosecutor improperly the aroused fears and emotions of the jury by referring rape, both opening closing argument, his as every nightmare. woman’s align claim the tried to prosecutor
Defendants also that improperly said, himself the he “I don’t ask personally jurors, you when Davis, find the of but for each and guilty verdict based on Sandra just us, one every of and all of our loved ones.” that waived this issue on If argues appeal. State defendants waived, a the not the State claims that this was comment on proper “our,” ac- Moreover, evils of the use of the word prosecutor’s rape. State, State cording improper put the was not because the did itself in the on the ve- position juror” of “thirteenth or comment of racity witnesses.
A of crime and its prosecutor may decry the evils properly 523, v. 132 Ill. 3d impact (1985), the victims. Carter App. hold, has that 1307, 1311.) argued, N.E.2d We the State rape “every nightmare” accept comment that is was an woman’s and, able on the of its on the rape impact comment evils victims therefore, was not erroneous. claim tried
Addressing prosecutor improperly defendants’ although to align prosecutor himself with the it is true that a jurors, may is latitude in his he not invade given great closing argument, (See v. or act as a “thirteenth province jury juror.” of 311, 314-15; 29 Ill. 3d Peo (1975), App. Martin Here, ple Vasquez every do to “each and prosecutor, referring we believe ones,” us, of our invaded the of improperly province one and all loved Thus, juror. prosecu as a find jury or acted thirteenth we he argument when closing tor was proper within bounds made the comments. foregoing error when the defendants claim reversible occurred
Finally, crim- said, in closing argument, every reasonable doubt is. used Also, “[tjhere nothing inal case about it. defendants magical” proof the State that defendants had burden argue implied “So, there. said, Certainly, it look at what evidence was when lets testified,” when the testified, she on that stand. She got victim prostitute, was a if there was evidence prosecutor said that if Davis was a The comment defense would have introduced it. it, also objectionable, have about was would heard prostitute, Illinois shield statute. because it violated the say, defendants *15 the proper within The that these comments were State maintains inferences based legitimate and closing argument of were bounds rape the about allegations defendants’ Concerning the testimony. circum- statute, unique contends that under shield State to defense case, response a proper of this the remarks were stances
553 repeated allegations prostitute. counsel’s that Davis was court has held that a of prosecutor This is within bounds if is proper closing argument nothing mysti he tells a there jury magical doubt, cal or about it is a burden ad reasonable Trass, juries 3d by every day. (See dressed at App. Therefore, 576.) N.E.2d it was not erroneous for the prosecutor at here nothing magical” to tell the “there is about reasonable doubt. also find other comments defend objected by We Trass, ants by were invited counsel Ill. 3d at (see 576) or, error, 483 N.E.2d at if were harmless error because guilt defendants’ more than sufficiently was established evi by dence.
The fourth issue that defendants raise on is that the trial appeal allowed mother and Dr. erroneously testify Davis’ Patterson Davis, which, about their conversations with argue, defendants were hearsay statements as spontaneous did declarations qualify or complaints. corroborative say Defendants that Davis’ statement spontaneous was mother it because was made 4V2 after hours occurred and was the alleged rape result her mother’s question- fit ing. also do not within the complaint The statements corroborative Davis’ mother and Dr. exception, argue, defendants because Patterson rape. were of the This testify concerning allowed the details error then, credibility. was highly prejudicial, because it Davis’ bolstered The admit- State that Davis’ responds properly statements were ted to rebut defense counsel’s claim that Davis and also lying, were admitted properly under declaration spontaneous prompt complaint exceptions. Despite gap, the 41/2-hour the State ar- gues that Davis’ statement spontaneous, given the nature of the defendants, attack threats made as well the fact still emotionally when she did to her upset report mother. Finally, contends that error here was harmless since the of Davis’ testimony testimony cumulative wit- nesses were for available cross-examination the defense.
In order for testimony to be held as a spontane admissible declaration, three factors must (People v. Robinson ous be present. occurrence must a spontaneous unreflecting to cause startling be state sufficiently fabricate, which to ment, of time in and the an absence there must be (Robin of the statement must to the circumstances relate .occurrence. son, factors, how these 73 Ill. 2d at at None of ever, determinative, declara admissibility spontaneous and the basis, tion will be all considering determined on a case-by-case *16 554 422, 415, 3d 511 (People v. Jarvis (1987), App.
relevant
facts.
158 Ill.
813,
The
of
occurrence
length
startling
N.E.2d
time between the
as
or lack of
significant
and
statement
not as
the existence
(Jarvis,
422,
817.) Fur
App.
158 Ill.
3d at
511 N.E.2d at
spontaneity.3
ther,
in
spontaneous
the fact that a
declaration is made
a
response
Jarvis,
will
158
3d at
question
spontaneity.
App.
destroy
422,
We Davis’ Although lapse, there was a 41/2-hour time spontaneous declaration. rape which Davis and her statement her during slept, between mother, significant considering we this lapse do find time nature of made the attack and the threats the Enochs. When upset crying. was still rape, very told mother about state, think it unlikely, considering We Davis’ emotional highly as period, Davis fabricated her that 41/2-hour noted story during above, of the that she this particularly asleep fact was light destroyed time. also hold that was not when Mrs. spontaneity We wrong.4 Davis asked Sandra what was to Dr. agree do not with the State that Davis’ statement
We merely determining 3Lapse of court considers in whether time is one factor that a spontaneous courts have found such the statement is the result of excitement. Illinois initial, exciting gunshot vic spontaneity to exist some time after the event. A even hours, tim, spontaneous nearly a locked in trunk 6V2 was held to have made a car for (People police opened trunk. v. Gacho of did when the declaration “who [it]” 221, 1146, 240-42, 1155-56.) four-year-old (1988), A was found 122 Ill. 522 N.E.2d 2d lying in bushes 18 spontaneous made he was found some to have a statement when 19, (1982), App. 3d (People v. 110 Ill. after his had shot. Chatman hours father been 691, 1292, People 26, (1982), App. 107 Ill. 3d 438 441 In v. Watson N.E.2d statement, 453, rape hours the incident young made two after a victim's hour, Also, asleep v. Parisie an admitted. where she had been for 310, (1972), the court admitted a victim’s statement 5 Ill. 3d 287 N.E.2d declaration, questioned by police officer at spontaneous where victim was as a shooting. time after the hour he was and an unknown least one after discovered declarations, observing extensively concept spontaneous there discussed the court circumstances, case each set of it a relative term which varied under tendency to extend and not limit that the modern case. The court further noted permit had application Federal and cases of the doctrine and several hours, hours, hours, hours after the 2 11 14 admission of statements made 3 ted occurrences. (8th 1980), in more de discussed v. Cir. F.2d 4In United States Iron Shell spontaneous the statement of infra, as a declaration admitted tail court assault, which after the to 1 minutes victim made between minutes hour happened.” The court inquiry police “what response to an of a officer of made stated: there startling the out-of-court state- lapse of event and “The time between or as a corroborative declaration spontaneous qualified Patterson to Dr. Patter that Davis’ statements However, we believe complaint. di for medical purposes made for son admissible as statements were proscribing hearsay to the rule exception or treatment. This agnosis statements, including pain, those of sub of such allows the admission capa demonstrations physical medical jective symptoms, history, examining purposes if to an for physician ble of simulation made and treatment. Gant diagnosis medical Graham, of Illi 564; & M. Handbook Cleary see E. States v. §803.8, (4th 1984).) at 560-63 ed. United nois Evidence the admis 1980), permitted 633 F.2d (8th Iron Shell Cir. statements of a concerning examining physician’s testimony sion of an *17 the In questions posed by physician. made in to response victim statements, doctor, into drug those she told the “she had been [sic] bushes, clothes, underwear, jeans the that her were removed something vagina that the man had tried to force into her which hurt *** she the tried to scream was unable because man but [and that] Shell, his hand neck.” 633 F.2d at put (Iron 82.) over mouth and The there doctor also testified that his examination revealed that was a small amount of sand and in the area not in the grass perineal Shell, vagina. (Iron 82.) specific 633 F.2d at He also said he found abrasions on both sides of the victim’s neck and this was consist described; in grabbing ent with someone the victim the manner however, he also stated he determine that absolutely they could (Iron Shell, 82.) Eighth were so 633 F.2d at We caused. believe reasonably Circuit in Iron held that the statements there were Shell treatment, primar inasmuch as were pertinent diagnosis they concerned with what had rather than who had assaulted ily happened in Iron Dr. testi testimony her. The Shell is similar to Patterson’s Here, here. Davis’ to Dr. Patterson were all re- mony statements although dispositive application ment relevant is not in the of rule. [the] [Cita- controlling response Lucy’s to an Nor is it statement was made tions.] Rather, inquiry. weigh these are factors which the trial court must [Citations.] determining testimony [spontaneous dec- whether offered within declarant, exception. age factors consider include the of the Other laration] declarant, physical and mental condition of the the characteristics of the subject to find that event and matter of statements. order [the spontaneous exception] applies, appear declaration it must declar- spontaneous, ex- ant’s condition at the time was such that the statement was impulsive product of and deliberation. cited or rather than the reflection [Ci- Shell, (Iron 85-86.) 633 F.2d at tations.]” here, Surely presented, under the circumstances the admission of the declarant’s spontaneous statement as a declaration was not also an abuse of discretion. lated to her physical condition and the rape, raped who her. Thus, the statements were consistent medical promoting treat- and, ment the court not err consequently, did Dr. Patter- admitting son’s testimony Davis’ statements concerning to him.
Nevertheless, if even were to find we these statements amounted to an erroneous admission of hearsay error testimony, Robinson, would not amount to error. In reversible the supreme court held of hearsay erroneous admission testimony, which did not as a qualify spontaneous declaration or a corroborative was complaint, not reversible error where the testimony merely cumulative of the rape victim’s testimony and where counsel able to cross-examine the hearsay declarant—the rape (Robinson, victim. Ill. 2d at 383 N.E.2d at The Robinson court said: “Aside from the unsworn and sometimes cumulative nature of evidence, most hearsay feature, its objectionable and the main exclusion, rationale is the underlying opposing its party’s inabil ity test the real of the testimony by value exposing the source (Robinson, assertion cross-examination.” 2d at 383 N.E.2d at
Here, the alleged hearsay testimony recited Dr. Patterson cu mulative Davis’ and defense testimony, counsel able to cross- declarant, examine hearsay Hence, Davis, herself. in any event, there was no reversible error here. See v. Gant (1974), 58 Ill. 564, 569. raise on is that appeal last issue defendants the trial court it failed to ask prospective jurors error when committed reversible to ask voir two of three questions requested it had *18 the second juror dire. The trial to agreed court ask each individual first and question defendants, to ask the by submitted the refused but .5 court, however, third The trial did instruct the questions prospective innocent, jurors that the State is presumed defendants are the to required prove doubt, the charges beyond a reasonable that defend- requested juror the to ask 5The defendants had trial court each individual the fol lowing questions: arguments “1. you If at close of all the evidence and after have heard you prove guilty of counsel believe that the State has failed to the defendants beyond doubt, any you have whatsoever reasonable would hesitation re- turning guilty? a verdict behalf, testify you 2. own would If the defendants not to in their decide against hold it them? you presumed 3. Do innocent and do understand that the defendants are behalf, guilty proven not have to must offer evidence in their own be beyond by a reasonable doubt the State?” re- innocence, jury their required prove ants were not instructions, in the the law as stated accept quired guilt beyond of their if convinced guilty must find defendants jury court The trial if not so convinced. doubt, and not guilty a reasonable or her abil- concerning his prospective juror also each question did not be- error occurred Defendants claim to follow these rules of law. ity in- law, without of the jury informed merely cause the trial court terrogating jurors. the individual by covered adequately areas were
The State contends that these The trial jurors. to the prospective the trial court’s admonishments be- sufficient, argues, the State further here were court’s remarks need not that the questions cause the Illinois Court has said Supreme form precise be asked in submitted. 1062, 472, 2d 469 N.E.2d v. Zehr People (1984), ju case that held that it essential a criminal
our supreme innocent, is not re that he rors know that a defendant is presumed evidence, defendant that the State must prove quired present doubt, that a defendant’s failure to guilty beyond reasonable trial The Zehr court held that the against cannot be held him. testify error it refused to ask court in that case committed reversible when ex counsel questions venire three submitted jury however, held, that the ploring questions those issues. Zehr court as the sub long need not asked in the form submitted so precisely be the course of the in ject during matter of the was covered questions 477, N.E.2d at (Zehr, on voir dire. 103 Ill. 2d at terrogation decided, the court has also held that a supreme Since Zehr was jurors, finding the individual judge actually question trial need general jury Zehr a “trial admonition satisfied [to [court’s] presumption with his discussion of coupled subsequent venire] innocence.” 122 Ill. 2d People (1987), v. Emerson 1109, 1114. it that no error occurred foregoing, Based on the is clear trial. The trial the voir dire of the for defendants’ prospective jurors all of the Zehr interrogate questions did not each three judge juror to the defendants; however, his admonishment cov- submitted by the Zehr Under questions. ered the matter contained within subject Emerson, then, sufficient. the trial court’s actions were reasons, the of the judgment for of the
Accordingly, foregoing all Furthermore, pursuant circuit court of Cook is affirmed. County People 374 N.E.2d v. Nicholls 71 Ill. 2d grant' we Agnew (1985), for the as costs that the be assessed request State’s defendants $75 *19 State’s defending appeal, and incorporate it as of our part judg- ment.
Judgment affirmed.
LaPORTA, J., concurs. EGAN, PRESIDING JUSTICE specially concurring: I agree with the judgment all affirming conviction and that is said in the opinion save one I do respect. agree state- ment of Sandra mother, Davis made her inculpated which she the defendants, was admissible as a spontaneous declaration exception to the hearsay rule.
Her mother her at saw 7:30 a.m. and noticed she was crying upset face was swollen and scratched. When her mother asked what was wrong, Sandra did not answer and went to bed. Four and one-half room, hours later came out of her Sandra still upset and Her crying. again mother asked her wrong, what was again Sandra did not answer. Her mother that she saw “didn’t want to talk” her mother “insisted” tell that Sandra her what hap- It was then that pened. only Sandra told her mother that the defend- ants had her. In raped judgment, that evidence my fails to establish under rule. spontaneity required
I am lapse aware that cases have held that time itself is not determinative, and some held that the fact alone that the have state- ment was made in to a response does not render the question evi- dence I inadmissible. But do not believe cited by major- cases ity its support holding. The Chatman case a involved statement a four-year-old boy person first he encountered. In Gacho the statement was in response made to a question, but the victim had suf- fered multiple gunshot wounds and was discovered in a trunk In Chatman and the statements were made at police. both Gacho first the victim had to The Watson case involved opportunity speak. a hospital statement a in a room. by three-year-old emergency child Parisie, a shirt along the decedent was road his cov- lying decedent, ered with in response When the arrived police blood. question, shot, said he had that he did not know who shot been him, that the man out and asked him for his pulled gun wallet and that he did know where car his was. Another conversation took place between the and the police decedent about two hours later at the hospital, where the again decedent told the that he police did not know him, who shot that he had met the 5th fellow at and Jefferson a ride around the lake Streets in went for Springfield, they the first statement was had not This court said that they parked. *20 but, not the sec- significantly, as an to the rule exception admissible The that the of the second statement ond. court held admission error, but not reversible. Robinson, the majority opinion, also referred to in
Similarly, the court to the sis held that admission of statements made victim’s ter under more than in this case circumstances favorable to the State “would do utter violence to the 73 Ill. 2d at (Robinson, rule.” However, the court that it I view the held was not reversible error. evidence the same as way appellate court did Parisie and To evidence an supreme accept exception court Robinson. I judgment. rule do utter violence to the rule” in But my “would do not the admission of the to the prejudicial believe evidence was defendants. If militated in favor of the defend anything, evidence ants as it in the defendants’ put evidenced use to which was closing It is to assume that the defendants argument. reasonable themselves had brought would have out fact Sandra been questioned her mother questions. and had refused to answer State in turn would have been entitled to that Sandra at first show said nothing because of her fear (See People of the defendants. Weisberg (1947), short, it seems clear that all of this evidence would have heard anyway; been but not as spontaneous declaration.
In re RAI, MARRIAGE OF CHARANJEET Petitioner-Appellant, RAI, Respondent-Appellee.
KRISHAN D. (6th First Division) District No. 1 — 87—3562 Opinion September filed 1989.